Robbie Gallagher (Fianna Fail) | Oireachtas source

I welcome the Minister to the House and at the outset, I would like to give credit to him for this legislation and I am delighted to speak on behalf of the Fianna Fáil group, along with my colleague Senator Clifford-Lee. Fianna Fáil believes in the delivery of fundamental public health services to the highest standard through investment, innovation and reform. It is critical that when things go wrong, patients are compensated and reforms are made so that the same harm does not occur again. This Bill would not exist without the tireless work and advocacy of Ms Vicky Phelan and her friends. We have now tragically lost Vicky. Patients like her and others who were harmed deserve justice and all patients deserve access to information about potential errors in their care.

The spirit of the Bill is noble and it is crucial that patients be informed of their right to have their screenings reviewed. It is equally crucial that there is open disclosure of errors that put patients in harm’s way. However, I have concerns that the Bill does not go far enough in protecting patients and I would welcome the Minister's comments on these concerns.

My first concern is about when a patient requests a review of their screening. The Bill should require that an independent practice complete the review in order to ensure that the same doctor or person who did the initial test is not the one who completes the review. The patient warnings are also not sufficient. The Bill only requires that patients be told once, likely at their first screening. In the case of a cervical cancer screening, women may receive their first screening at a very young age and may not be at risk of developing cancer until many years later. The burden is on patients to remember their rights years later and they are further burdened by a requirement that their request for review be made in writing.

The second concern I have is about the standards for notifying a patient after an independent audit. If an audit discovers that a patient’s test was misread, even the smallest error should be made known to the patient, no matter if that mistake has already resulted in death or severe injury. In the worst-case scenario, a patient may have cancer or another illness completely unbeknownst to them, and being notified of even a small error in an earlier test could spur them to seek further testing. It should be up to the patient whether an error is large enough to be concerned about. The old adage, a stitch in time saves nine, springs to mind here. The Bill only requires disclosure when an error results in death or severe injury, and only then if the harm resulted directly from the care provided. This standard is subjective and the maximum fine is a mere €5,000.

Furthermore, any disclosures of errors made cannot be used in legal proceedings as evidence or in a civil suit. For example, in a road traffic accident, if X drives on top of me and causes me harm and at the scene X says that he was at fault and takes complete responsibility, that can be used as evidence in further litigation, but not in this case. If this Bill were law when Ms Vicky Phelan was fighting her case, it is possible she would not have learned of the mistakes made reading her scans because discordant cytology is not considered an unintended or unanticipated incident under the Bill. Ms Phelan's poor care would not qualify as an incident worthy of alerting patients or regulators. Furthermore, the way that records are sealed under the Bill would have made it much more difficult, if not impossible, for her to access the notes on her 2011 screening.

While the spirit of the Bill is noble, I believe there are amendments that would potentially firm it up. I would welcome the Minister's thoughts on the matter. I hope the response I receive will bring clarity to the genuine concerns I have outlined.